SMETHPORT — A five-hour hearing in McKean County Court for an attorney accused in a fatal crash ended with multiple unresolved issues and a seemingly frustrated judge.
Marc W. Nuzzo, 43, of Wilkes Barre and formerly of Kane, is facing criminal charges for a Sept. 5, 2018, accident in which several people were injured, and one man — Stanley “Guy” Austin — died in the hospital about two weeks after the crash.
The hearing was held before Potter County Senior Judge John Leete, as both McKean County judges recused themselves.
Much of the discussion centered on a defense motion to disqualify District Attorney Stephanie Vettenburg-Shaffer, a commonwealth motion to quash a subpoena for communications from Shaffer and a defense motion for change of venire/venue.
The above subpoena, Shaffer argued, is too vague, asking for cell phone communication, emails and other electronic communication of hers from a period of time around when the charges were filed.
“The defendant is attempting to make me a witness in this case,” said Shaffer.
Also, she said the request is “overbroad,” explaining “it’s hard to ascertain what is not being requested.”
Erie attorney James Miller, who is representing Nuzzo along with St. Marys attorney Christopher Martini, explained the subpoena is related to the motion to disqualify, in which they are trying to show that Shaffer used the publicity of the case to benefit her campaign for re-election as district attorney. Miller said the defense team wants to look for communication with the press.
When Leete questioned the way Miller went about trying to find the information, Miller said it was the only way he knew how to get the information.
“I do not have search warrant capacity,” Miller noted.
He did not go to the press for the information, he explained, as there is a rule protecting sources, and he believed it would be a dead end.
“The press defends that right very zealously and I understand that,” Miller said.
Miller thought it was “unusual” that Shaffer attended Nuzzo’s arraignment on March 28, 2019, and he also made note of the fact that the press was present for the late night arraignment, which didn’t start until around midnight.
Miller said he didn’t even know a warrant had been filed for Nuzzo until 6:08 p.m. March 28, 2019, when he received a three-word message from Shaffer that read “warrant for Nuzzo.” He contacted Nuzzo, who then made the several-hour trip back to McKean County.
Talking in her own defense, Shaffer said, “I take my obligations very seriously, and I instruct my officers to do the same.”
Shaffer said that if Miller thinks she did something improper, there is an avenue to remedy it: report her to the ethics board.
“It just doesn’t meet the qualifications of a disqualification,” she said of Miller’s arguments.
Shaffer asserts Miller’s motion is an attempt at “a fishing expedition.”
Leete told the attorneys that he wants to hear case law regarding the matter.
Attorney Erika Mills — Nuzzo’s girlfriend who moved out of the area with him after the crash — was called on to testify.
Mills testified about several things including an affidavit she signed with a statement she made regarding the motion to disqualify Shaffer. She also described searching for newspaper articles, internet articles and social media posts related to the case.
The articles were submitted as evidence for both the motion for change of venire/venue and the motion to disqualify Shaffer.
Regarding Mills’s signed statement, she said that on Jan. 7, 2019 — before the charges were filed — she had a conversation with Bradford attorney Gregory Henry in which it was his understanding that charges would be filed before the primary election in May.
Henry served as campaign manager for Shaffer’s re-election.
Henry also testified, saying that while he did not recall what he and Mills discussed in the conversation that day, “I did not say to Miss Mills what she represents I said in the affidavit.”
Later, when Henry was asked how he knows he did not say that if he does not remember the conversation, Henry compared it to a hypothetical situation, saying that if Miller said that Henry told him he wanted a sex change operation, Henry would know it was false because he would not say he wanted such an operation.
There was lengthy discussion during the hearing regarding the timeline of the events, with the accident happening Sept. 5, 2018, the charges being filed March 28, 2019, and the primary election — in which Shaffer was in a contested race for district attorney — held May 21.
Shaffer brought three witnesses to testify regarding when the charges were filed.
Trooper Quinton O’Rourke, who filed the charges against Nuzzo, said the filing of charges was delayed for multiple reasons, including the fact that he was transferred to a different barracks shortly after the accident.
Also, he had to wait until two expert accident reports were filed, as well as for medical records for multiple patients.
“Did you delay filing charges because I was up for re-election?” Shaffer asked O’Rourke.
“No, I did not,” O’Rourke replied.
During cross-examination from Miller, O’Rourke did agree that he did have discussions with Shaffer when he was filing charges.
Trooper Robert Manno, a state police collision analysis and reconstruction specialist, testified, too, saying that he finished his report on Jan. 16, 2019, and had to have it reviewed by two other people before the report could be sent to the investigating agencies.
Linda Fry, an employee in the District Attorney’s office, testified that she received the report in the mail on Feb. 13.
Also at the hearing, Martini brought up an ex parte discovery issue he wanted to go before the court, but the issue was not described in full on Tuesday. He suggested that briefs be filed in the matter.
It was indicated at the hearing that a habeas corpus motion is pending, too, as well as an issue about a bill of particulars.
Trying to end the hearing, Leete initially ruled that the attorneys should file briefs outlining the pending motions and requests. However, when he was met with more arguments, Leete changed his mind and said another hearing will be held.
“I hate to do that. I believe it’s a complete waste of resources,” he noted.
Several times throughout the hearing Leete vocalized his apparent frustration with the fact that the proceedings did not seem to be moving forward. He indicated that both sides were being argumentative, and delays were caused by a disorganized pile of news articles and social media items that the defense wanted to submit as evidence.
At one point, Leete said, “Ladies and gentlemen, this is not a dog fight. This is not a circus.”
Another time, he took a break from the proceedings to warn the attorneys, that while “I am aware that this matter before us is a serious one” — one which affects the lives of several people — “The court’s expectant there will be excellent behavior.” He said he would remove anyone who did not behave properly.
Around 6 p.m., Leete put an end to the discussion, saying “Folks, there has to be a limit and we are there. This has been been an astonishing afternoon. Astonishing.”
No date for further arguments had been set as of Tuesday evening.